Philip Zelikow is a well-informed scholar of public policy and his recent speech in Houston (referred to by Marty in a previous post) is worth close attention. Perhaps he is best known as the executive director of the 9/11 Commission, but he has been in and out of government since the first Bush administration as well as being a faculty member at Harvard and Virginia. His speech provides some insight into how government officials have understood their role since the outbreak of the “war against terror.”

Zelikow’s theme is that the policy debate over how to conduct the war against terror has been overshadowed by a more technical legal debate. From his point of view, we should have had a vigorous policy debate over how to fight terror. Why didn’t this happen? Zelikow’s answer is that lawyers were put in charge and lawyers are not skilled in either moral reasoning or legal policy. Lawyers in and out of government framed the debate around a familiar conflict between national security and civil liberties. Constitutional lawyers such as John Yoo (who Zelikow calls “a brilliant scholar”) were influential in this respect.

In presenting this summary of Zelikow’s view of how the debate was framed, I have the sense it doesn’t hang together terribly well. One reason is probably because he ignores anything that happened pre-9/11 that might have influenced how lawyers and others reacted to the event. Like many others, Zelikow takes 9/11 as an opportunity to write on a blank slate. The short answer to what Zelikow is saying is that quite a lot of law had accumulated, pre-9/11, on how the U.S. should initiate and fight a war. Some in the Bush administration had an impulse to throw preexisting law out the window, but that impulse should have been resisted by wiser heads. In this case, the “wiser heads” were lawyers like Alberto Gonzales, our current Attorney General, who sought a “new paradigm” for fighting the war that was authorized by the September 2001 Authorization to Use Military Force.

Gonzales and President Bush didn’t have to look far, because lawyers like Yoo and David Addington had articulated pre-9/11 a new presidential doctrine of war-fighting which they swiftly put into effect. I’m afraid I can’t agree with Zelikow that Yoo and Addington were “brilliant” because I use their positions, expressed in some of the “torture memos,” as examples of how not to make constitutional arguments in the separation of powers section of my constitutional law course. The arguments in these memos were at best tendentious, at worst incompetent. Anyone familiar with separation of powers law pre-9/11 could spot the problems. Zelikow says later that these lawyers were operating at the “frontiers of our law,” but this is true only with respect to the questions they were posing, not the answers. The answers Yoo and others came up with were outside the law.

Turning to policy prescription, Zelikow argues that we can’t respond to the threat posed by al-Qaeda in purely criminal justice terms. I have some sympathy for this argument, but all of the points Zelikow makes about the difficulty of criminal prosecutions apply with equal force to the terrorist attacks that occurred pre-9/11. And the trouble there is that criminal prosecution did work successfully, despite some long odds. What Zelikow is missing is that there are important reasons why we should operate with a presumption in favor of “standard” methods like criminal investigation according to constitutional rules instead of assuming they won’t work. Consider this observation from Lawrence Wright’s The Looming Tower. He is reporting the observations of John O’Neill, FBI agent, after the May 29, 2001 convictions of the men who bombed American embassies in East Africa:

O’Neill understood that the crime model was just one way to deal with terrorism,and that it had limits, especially when the adversary was a sophisticatedforeign network composed of skilled and motivated ideologues who werewilling todie. But when Dick Clarke had said to him during themillennium arrests,“We’re going to kill bin Laden,” O’Neill didn’t want tohear about it. Although al-Qaeda posed a far greater challenge to lawenforcement than theMafia, or any criminal enterprise, had, thealternatives – military strikes, CIAassassination attempts – hadaccomplished nothing except to aggrandize bin Ladenin the eyes of hisadmirers. The twenty-five convictions, on the otherhand, were genuineand legitimate achievements that demonstrated the credibilityand integrityof the American system of justice. (p. 339)

Zelikow thus makes a common error by ruling out the criminal model from the beginning. He does say that partly because of this, we have not won over governments in Western Europe to our approach. He characterizes these governments as “pacifist” in response to the terror threat – surely an overstatement. If these governments were pacifist, they would not have military forces at all, forces that actually assisted the U.S. in hunting down terrorists in Afghanistan. Experience shows that Western European governments were willing to help militarily if the right case was made. For me, Zelikow’s speech struck some odd notes and I think that is because he is making many assumptions he won’t state and doesn’t defend about how the U.S. should have reacted to the 9/11 attacks.

Professor Griffin: Zelikow thus makes a common error by ruling out the criminal model from the beginning.

Amen. My first attempt at ridiculing that choice was a fantasy bumper-sticker, "War on Terror? Splint on Smallpox!" Turns out that was a little subtle for most folks. Since then I've put effort into repeal-aumf.org trying to point out the fallacious nature of "war" in response to nine-one-one. Your observation, then, is most welcome.

Turning to policy prescription, Zelikow argues that we can’t respond to the threat posed by al-Qaeda in purely criminal justice terms. I have some sympathy for this argument, but all of the points Zelikow makes about the difficulty of criminal prosecutions apply with equal force to the terrorist attacks that occurred pre-9/11. And the trouble there is that criminal prosecution did work successfully, despite some long odds...

Although al-Qaeda posed a far greater challenge to law enforcement than the Mafia, or any criminal enterprise, had, the alternatives – military strikes, CIA assassination attempts – had accomplished nothing except to aggrandize bin Ladenin the eyes of his admirers. The twenty-five convictions, on the other hand, were genuineand legitimate achievements that demonstrated the credibility and integrity of the American system of justice.

We need to define the end result which we are seeking to achieve before we can determine the relative success of the competing means or achieving that end.

The short term end result we need to achieve is to deny al Qaeda the operational capability to murder our citizens and the long term result is the surrender or elimination of al Qaeda.

The criminal justice model and its 23 after the fact convictions was a complete failure in achieving these goals. The operational capability of the al Qaeda network was not degraded in the least prior to 9/11 using law enforcement assets. al Qaeda operated with near impunity in several foreign countries which our FBI could not reach and had the capability to launch international attacks from those bases.

It was not until we treated al Qaeda's nearly decade long war against the United States as a real war and sent in our military assets to engage and destroy the enemy where they lived that al Qaeda's operational capability to launch international attacks against US citizens was almost completely degraded.

I have no idea to which military strikes against bin Laden that John O'Neil is referring. The Clinton Administration declined to use the military to kill bin Laden and his officers on multiple occasions. While we can only speculate as to whether killing bin Laden in the 90s would have stopped 9/11, we can be sure that foregoing the military options did not enhance our defense against 9/11 or any of the previous attacks.

That being said, our domestic law enforcement agencies have a key defensive role to play in stopping attacks which are a launched within our country as the impressive operations against the planned attacks against Ft. Dix and JFK airport have recently demonstrated. However, domestic law enforcement cannot be reasonably expected to project US power against al Qaeda in foreign countries where they live.

Bart: We need to define the end result which we are seeking to achieve before we can determine the relative success of the competing means or achieving that end.

Actually, Bart, here in America we try to work under the principle that there is more to selection of means than merely the end we have in sight. In particular, war powers are clearly intended only to be invoked for existential threats to the nation. Likewise for breaches of civil rights such as the suspension of habeas.

I understand fully that you and your partisans want no part of such an America. That's fine, we don't really want any part of you either. It's just that our principles require us to defend your rights as well as anyone else's.

A little armchair psychology here, but is it possible earning your keep defending guilty drunks has made you jaded, is part of what prompts your insane and inane support the evil, as in un-American and certainly un-Christian, policies of this imperialist administration? Or is it just that "born to follow" attitude which makes a good grunt?

Actually, Bart, here in America we try to work under the principle that there is more to selection of means than merely the end we have in sight. In particular, war powers are clearly intended only to be invoked for existential threats to the nation.

Did you actually mean to say that we may not use the military to defend the nation against al Qaeda attacks until they manage become an existential threat to the US by perhaps detonating a nuke in your city?

Although I recently wrote about the amazing level of denial that we are even in a war with Islamic fascism, fresh examples of this denial such as your post continue to amaze me.

"Although I recently wrote about the amazing level of denial that we are even in a war with Islamic fascism, fresh examples of this denial such as your post continue to amaze me.

"# posted by Bart DePalma : 9:45 AM"

The Islamic radicals to which you refer are religiofanatics, Bart, but they are not state actors. Not being state actors, they cannot be "fascists". They can be, of course, like you, thugs.

Nor is it "war," Bart, as wars are conducted between and among states. Not being states, or state actors, terrorists -- actual or alleged -- are not a party to "war". 9/11 was, in fact, a mass murder, properly prosecuted under the police power, exactly as was done under Clinton to those who bombed the WTC in 1993.

Oh, right: Clinton didn't use the military against the religiofanatics in that instance, and that was his failing: He should have bombed and invaded and occupied New Jersey.

And Spain doesn't know how to deal with terrorism either. In response to the Madrid bombings, it worked through international police agreements to identify, find, have arrested, and extradicted the perpetrators, instead of bombing and invading Italy.

The proper approach is, of course, to use all relevant tools, including that of inter/national criminal law, instead of stupidly limiting oneself to only one of the several available. But that's not how Bushit works -- he only knows how to bully, and he especially loves to beat up on those too weak to fight back -- so that's not how lock-step fool Bart works.

Mark Twain quit the Republican party because it's notion of thinking for oneself was to adopt the party line. As Bart demonstrates, the Republican party still requires that groupthink, that brainwashing, of its religionut adherents.

The Islamic radicals to which you refer are religiofanatics, Bart, but they are not state actors. Not being state actors, they cannot be "fascists".

Are you actually claiming that the Nazis were not fascists until they took power over Germany?

Nor is it "war," Bart, as wars are conducted between and among states. Not being states, or state actors, terrorists -- actual or alleged -- are not a party to "war".

Under this reasoning, rebellions, revolutions and conflicts between states and non state groups like the Indian Wars are actually cases of murder?

Under this reasoning, we are not really at war in Iraq of Afghanistan because the enemy is not a state?

In reality, we have been involved in several war with non state groups over the past two centuries, including this current war. The war against the Barbary Pirates most closely matches our current war with Islamic fascism.

Have you actually studied history? I mean, I know you stated in a previous post that you are self taught, but this statement stands out:

Under this reasoning, rebellions, revolutions and conflicts between states and non state groups like the Indian Wars are actually cases of murder?

IIRC, the Indian nations were officially sovereign peoples. That you choose not to acknowledge that bodes poorly for your opinions of the Iraqis, Afghans, and any other nations occupied by the American Empire. You have to acknowledge them as people, with rights, before you will stop treating them as subjects.

Prof. Zelikow makes some great points about interrogation, but I question his conclusions about the role of law and lawyers and about why (and whether) the U.S. has had difficulty selling the world on an armed conflict paradigm for its counter-terrorism efforts.

First, he mentions that the lawyers were brought in to do post hoc justification of the administration's interrogation practices, but then he does a 180, blaming bad interrogation behavior on the results of legal analysis - an almost unintended consequence of mistakenly placing lawyers (who do "can" and "cannot") in the role of policymakers (who do "should" and "shouldn't"). The how and why of the Justice Department’s "torture memos" make quite clear that Zelikow got it right in the beginning, but then lost the thread of his own argument. The lawyers were not merely asked to give an opinion on the outer limits of interrogation legality. Instead, it all began with interrogators who were getting nervous that the techniques they were authorized to use constituted torture or lesser degrees of abuse amounting to war crimes. They did not want to risk being scapegoated, and so, the Department of Justice was called upon to provide them with legal cover.

The legal justifications for torture put forth by the "brilliant" (according to Zelikow) Justice Department lawyers such as John Yoo, are almost universally recognized by constitutional scholars as sophomoric. But criticism of the legal analysis misses the point. The official (and then secret) justifications of torture did not have to be correct. They served their purpose – to provide legal cover to interrogators who would rely on them – merely by existing. Zelikow's flawed analysis effectively, even if unintentionally, rationalizes a cover-up of war crimes.

Zelikow’s analysis of whether the "war on terror" is law enforcement or armed conflict is also flawed. First, let me make clear that unlike some law of armed conflict experts, I do not doubt that a state can be at war against a transnational, non-state sponsored armed group, e.g., that the U.S. can be at war against al Qaeda. But Zelikow's approach is conclusory.

Rather than ask whether or not the indicia of armed conflict - the facts requisite to triggering the application of the law of armed conflict - are present, he begins with a series of statements alleging the inconvenience of a criminal justice approach, but not really analyzing the pros and cons. In a similar vein, he then chides other states for declining to accept the armed conflict paradigm (without citing evidence that they have indeed done so) because they are pacifists, or because they are hard-wired to do the opposite of what the U.S. does, or because they have not suffered like we have suffered. Still no discussion of whether or not the factual criteria for armed conflict are present: who are the parties? what is their level of organization? what territory is implicated? what is the frequency and severity of attacks? And if the law of armed conflict does apply because the requisite criteria are present, then what might be the temporal and geographic limits of its application?

When Zelikow addresses how the U.S. might have contributed to the reticence of other states to accept the idea of armed conflict, he focuses on antipathy to the unilateralist approach taken by the U.S. But he makes no mention of the possibility that other states, especially ones with more recent war experience on their own soil than the U.S., may be reluctant to climb on the "war on terror" bandwagon because they have a somewhat more respectful attitude for the laws of armed conflict than that exhibited by the U.S.

There is a familiar sub-textual suggestion in Zelikow's presentation: the law is unclear, or it is quaint, or the issues are not really legal ones. Yes, there are difficult issues: when does violence become armed conflict? how, if at all, do different legal regimes such as the law of armed conflict and human rights law and domestic law apply to targeting, detention, treatment and trial in transnational situations of armed violence that do not pit state A against state B? And within the U.S., who gets to decide these things? But there are answers to these questions for those willing to give the rule of law its due. And the lawyers who know this stuff can also articulate why the rules are the way they are, what policy imperatives they serve, and what the consequences of choosing to ignore them are. Prof. Zelikow, by seeming to divorce policy from law, or by elevating policy over law, misses an important step of first determining whether true comportment with law can suggest and inform rational policy options.

His invocation of the spirits of Stimson, Marshall (George), Roosevelt and Churchill – tough guys in tough times – to denigrate law is both inaccurate and ill-advised. In the First World War soldiers hors de combat (those injured, sick or who had surrendered) were likely to be killed on the spot or badly abused in captivity. In contrast, during the Second World War they stood a much better chance of being taken captive and treated more humanely - by the Germans as well as by others. The difference between the two wars was the promulgation, after World War I, of the Third Geneva Convention on the treatment of PoWs.

In 20th and 21st century warfare, lawyers in the U.S. and in other countries have played a pivotal role even on the battlefield. They vet target selection for comportment with the principles of distinction (military objectives: OK; civilian objects: not OK) and proportionality (weighing military advantage against civilian harm). This protects their own troops from exposure to war crimes liability and promotes the overall mission by controlling damage in the battle for hearts and minds.

Zelikow warns about the danger of letting hypothetical-wielding lawyers rush in where wise policy gurus should be making the calls. But the Administration has created such a harmful mess by ignoring the advice of its career military lawyers and instead, allowing its "policy" consiglieres to trump long-standing practices and rules that faithfully implement international legal obligations in armed conflict, such as AR 190-8, the regulation that implements the procedure for distinguishing between combatants and civilians in armed conflict.

There's something suspect in the phrase I once heard from Vladimir Putin - something about establishing a dictatorship of the rule of law. But while slavish kowtowing to law may be creepy, I'd still rather take my chances with a bunch of lawyers arguing it out in daylight, than with policy mavens who don't know the law, don't understand the effect of the law, and don't appreciate the larger purposes that it serves. And just because those policy ideologues use lawyers as their secret cloak, it doesn't make law the culprit.

Perhaps you subscribe to the "quaint" notion that policy must conform with law or, put differently, that policy decisions are choices of which lawful action to take. If what you say is correct, Zelikow is saying that breaking the law is a legitimate policy decision. I, too, am "quaint" enough to disagree.

IIRC, the Indian nations were officially sovereign peoples. That you choose not to acknowledge that bodes poorly for your opinions of the Iraqis, Afghans, and any other nations occupied by the American Empire. You have to acknowledge them as people, with rights, before you will stop treating them as subjects.

The American Indian tribes were hardly nation states with sovereign governments and territory as we define that term and we never recognized them as such. The United States used the term "nation" in their treaties with individual Indian tribes but never recognized them to be sovereign.

In stark contrast, Iraq and Afghanistan have sovereign governments and territory which are internationally recognized. Thus, the slur American Empire has no merit.

Well, you see, who is the "sovereign" of other lands is who we decide is the "sovereign". See, e.g., Iraq, Afghanistan, ... umm, oh yeah, Iran, Grenada, Nicaragua, Panama, El Salvador, Chile, the Dominican Republic, anonanonanonanon. If they're a bunch of raghead goatf*ckers (and what's our oil doing under their sand, anyways?), or a bunch of naked savages with some pretty little golden statues and such, we'll provide an appropriate "sovereign". The "White Man's Burden" and all, yaknow.... That's what "empire" is all about, after all.

The American Indian tribes were hardly nation states with sovereign governments and territory as we define that term and we never recognized them as such.

Wow, just wow. About 150 years of American history just went poof. Bart, when the first British and other northern European colonists got to the future United States, the Indians were the sovereign peoples. And if those colonists hadn't come as supplicants (not even equals), they likely wouldn't have lasted more than a handful of years (e.g. Roanoke and Vinland), even with the reverse decimation caused by diseases brought by European colonists.

Of course, it also seems that you are making another statement here. All treaties entered by and with the United States (and IIRC my Constitution correctly) and the various tribes were the law of the land. And they were agreements between the US and sovereign nations (e.g. WHEREAS the treaty made and concluded on Holston river, on the second day of July, one thousand seven hundred and ninety-one, between the United States of America and the Cherokee nation of Indians, has not been fully carried into execution by reason of some misunderstandings which have arisen http://www.yale.edu/lawweb/avalon/ntreaty/chr1794.htmHmm, that was from almost the first years of us as a nation, and "we" were entering into treaties with an Indian "nation". So 200+ years ago, "we" defined things very differently than "we" do now.

Now, Bart, you may have a point in power politics, in that we rarely honored those treaties--shall we say laws of the land--with regards to the Indian nations. But that leads me to think that you believe that "the [Indian] has no rights that a[n American] is bound to respect". Because that is really the only way you, as an attorney, could ignore the law in hundreds of cases. Apparently you honor the law and the Constitution more in the breach than the observance.

So which is it, Bart? Do we honor the law and the Constitution, or ignore them because it allows us to fulfill our Manifest Destiny?

Once again, a nation state requires a sovereign people controlling defined sovereign territory. Show me where the Europeans or the Indians themselves recognized Indian nation states with defined borders and a single sovereign government ruling over such states. The Indians had no recognized borders and rarely if ever had a single government above the local tribal level.

Bart: The Indians had no recognized borders and rarely if ever had a single government above the local tribal level.

This is beneath even you, you cowardly, lying cheat. Do you really contend that the folks who were here first basically had it coming for not having the good sense to have organized along European lines with citified nation states? I knew they still taught Manifest Destiny and White Man's Burden in history, but not as modern ethical principles.

Makes your blind support of all things xenophobic a little easier to understand, it's untrammeled bigotry. I should have recognized the stench sooner. None of them wogs really had any rights to begin with, just us God-fearing free white men, eh?

Now, Bart, you are ignoring several hundred years of North American history.

Once again, a nation state requires a sovereign people controlling defined sovereign territory. Show me where the Europeans or the Indians themselves recognized Indian nation states with defined borders and a single sovereign government ruling over such states. The Indians had no recognized borders and rarely if ever had a single government above the local tribal level.

You obviously are ignoring the Six Nations, whose government arguably influenced our own. You also ignore Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832), just like your pre-Bush hero Jackson who felt he could ignore the law ("John Marshall has made his decision; now let him enforce it!"). You ignore the website I cited above, and the treaty that clearly states that the tribe was a nation, and the borders that the treaty (and the previous treaty) had set.

You claim that a tribe does not constitute your view of what a proper nation should be, and therefore does not have to be treated as such. This does not change the law; it ignores it (admittedly, just like the US government ignored its own laws for years by breaking its treaties with the Indians). Now I understand why you love Bush's policies so much--you have that in common with him.

You are embracing and reveling in some of the worst in American actions, and if millions of Indians, or hundreds of thousands of Iraqis die because of it, at least you feel good about your defense of nation states. I think you need to stop trying to cover your favored illegalities with the veneer of the law, because it is obvious that to you the law is a tool to be manipulated and ignored when it suits you or your cause.

The professors have been good enough to invite us here and only ask that we stay on topic. If you want to discuss another topic with me, show some consideration and go over to this open thread I have set up for that purpose over on my blog.

The blogwhoring "Bart" DePalma makes this 'generous' invite (here, and just about every thread on Balkin's blog):

If you want to discuss another topic with me, show some consideration and go over to this open thread I have set up for that purpose over on my blog.

"Bart": Let's be clear on this. You don't 'discuss' anything.

You mouth your crapola, and ignore it and run to the next thread the moment someone pounces your snotty a$$ with any criticism or couter you can't deal with. You're even more of a chicken than Dubya. And that's saying a lot.

Give the devil his due, he hardly ever mentions his blog. And he's one of the few folks around here who actually has a publicly viewable profile. I can even remember naively visiting his blog, way, way back when, and thinking he might be the kind of right-wing opponent who could teach me a thing or two. No, really, I had the stoopid fantasy about dialectic and honing my game by engaging a worthy adversary. Well, I've learned all right...

Anyway, getting his hits up ain't the motivation, and we all know it. It's simple cowardice.